Mohd. Hussain @APPELLANT@Hash The Oriental Insurance Co.Ltd. And Others

,,,

Since the instant appeals are preferred against a common award of the Motor Accidents Claims Tribunal, Jammu",,,

dated 23.12.2013and have arisen from a common road accident, the same are taken up together and disposed of",,,

by a common order.Â,,,

The instant appeals have been filed by the claimants/appellants for enhancement of the award passed by the Motor,,,

Accidents Claims Tribunal, Jammu (for short ‟Tribunal‟).",,,

The facts in brief as projected in the appeals are that on 27.03.2010 at about 7.45 AM the claimants/appellants were,,,

standing at Village Garan on road side, when a mini bus bearing registration No.JK11-2230 (Tata 407) which was",,,

driven by its driver in a rash and negligent manner hit the appellants as a result of which they sustained multiple,,,

grievous bodily injuries. The appellants were removed from the place of accident to SDH, Nowshera andsubjected",,,

to medical treatment. Thereafter claimants/ appellants were referred to GMCH, Jammu, where they remained",,,

admitted from 27.03.2010 to 04.04.2010. The doctor assessed the permanent disability of the claimants/appellants,,,

at 25% and 30% respectively. After their discharge from the said Hospital, they have been getting their treatment",,,

from the private clinics at Jammu and Rajouri respectively.,,,

It is contended that the claimants/appellants are Mason by profession and now they have become handicapped and,,,

could not perform their Mason work as their profession. Â,,,

The owner and driver of offending vehicle, though duly served, did not come forward to oppose the claim",,,

petitions. Insurance Company (respondent no.3 before the Tribunal) appeared through its counsel and filed,,,

objections, resisting claim petitions on the ground that driver of offending vehicle was not holding a valid and",,,

effective driving licence at the time of accident.Â,,,

The Tribunal on going through the pleadings of the parties framed the following issues:-,,,

“1. Whether an accident took place on 27.03.2010 at Village Garan on Noshera-Garan Road by rash and,,,

negligent driving of offending vehicle No.JK11-2230 by is driver respondent No.2, as a result of which petitioners",,,

Babu Ram and Mohd Hussain received grievous injuries ?OPP,,,

In case issue No.1 is proved in affirmative, whether the petitioners are entitled to compensation, if so, to what",,,

amount and from whom? OPP,,,

Whether the driver of the offending vehicle was not holding a valid driving licence at the time of the accident and,,,

whether there was violation of terms and conditions of policy of insurance? If so to what effect ? OPR-3,,,

Relief ?   O.P.Parties.â€​,,,

The parties to the claim petitions adduced their evidence to discharge the onus of proving issues, burden whereof",,,

was placed on them respectively. Learned Tribunal after deciding all the issues has worked out Rs.95,000/-Â and",,,

Rs. 1,00,000/-Â respectively as compensation payable by the Insurance Company to the claimants-appellants",,,

along with pendente lite and future simple interest @ 7.5 per annum except future interest on the amount of loss,,,

of future income. The amount of compensation under „no fault‟ liability if granted and paid shall be adjustable.,,,

Thus, Tribunal held the Insurance Company liable to pay the aforesaid compensation to the claimants.Â",,,

The claimants questions the impugned Award dated 23.12.2013 through the medium of present appeals and seek,,,

enhancement of compensation on the ground that learned Tribunal has not appreciated the law as well as facts on,,,

record in a proper perspective and the conclusions drawn therefrom were erroneous under law. In view of the,,,

grievous nature of injuries suffered by the appellants, percentage of permanent disability and its impact on the",,,

profession of Mason and the treatment undergone by them, the amount awarded by the Tribunal is stated to be",,,

highly on the lower side. Learned Tribunal is stated to have firstly erred in taking the monthly income of appellants,,,

at Rs.6,000/- and further by taking the loss of earning capacity at 8% and 10%Â instead of 25%Â and 30% which",,,

is the permanent disability suffered by appellants. It is pleaded that if the monthly income of claimants/appellants is,,,

taken as Rs.6,000/- as assumed by the learned Tribunal then after considering the permanent disability of 25%Â",,,

and 30% the loss of monthly future income comes to Rs.1500/- which annually comes to Rs.18000/- and on,,,

applying the multiplier of 14Â and 13 respectively which is prescribed for the age group of appellant- Mohd,,,

Hussain and appellant-Babu Ram, as per Sarla Verma’s judgment, the amount of compensation for loss of",,,

future comes to Rs.2,52,000 and Rs.2,80,800/- respectively. Learned Tribunal is said to have also erred in",,,

awarding meagre amount for loss of amenities and pain and suffering to the tune of Rs.10,000/- each only ignoring",,,

the nature of injuries suffered by the appellants, the period of treatment undergone and the extent of permanent",,,

disability and the amounts under these two heads are required to be suitably raised; and that the learned Tribunal,,,

has failed to award any compensation for special diet, attendants, medical expenses/ hospitalization, transportation",,,

etc. It is, thus contended that the compensation awarded by learned Tribunal under different heads are meagre",,,

and on the lower side.Â,,,

I have gone through the memos of appeals as also the impugned award and have heard learned counsel for the,,,

parties.Â,,,

The possession of one's own body is the first and most valuable of all human rights and while awarding,,,

compensation for bodily injuries, this primary element is to be kept in mind. Bodily injury is to be treated as a",,,

deprivation, which entitles a claimant to damages. The amount of damages varies on account of gravity of bodily",,,

injury. Though it is not possible to equate money with human suffering, agony and personal deprivation, the Court",,,

and Tribunal should make an honest and serious attempt to award damages so far as money can compensate the,,,

loss. Regard must be given to the gravity and degree of deprivation as well as the degree of awareness of the,,,

deprivation. Damages awarded in personal injury cases must be substantial and not token damages.,,,

In a plethora of cases the Supreme Court and various High Courts have held that the emphasis of the Courts in,,,

personal injury cases should be on awarding substantial, just and fair damages and not mere token amount. In",,,

cases of personal injuries, the general principle is that such sum of compensation should be awarded which puts",,,

the injured in the same position as he would have been had accident not taken place. In examining the question of,,,

damages for personal injury, it is axiomatic that pecuniary and non-pecuniary heads of damages are required to be",,,

taken into account. In this regard the Supreme Court in Divisional Controller, KSRTC v. Mahadeva Shetty, (2003)",,,

7 SCC 197, has classified pecuniary and nonpecuniary damages as under:Â",,,

This Court in R.D. Hattangadi v. Pest Control (India) (P) Ltd. laying the principles posited: (SCC p. 556, para 9)",,,

Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have",,,

to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the,,,

victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary,,,

damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two,,,

concepts pecuniary damages may include expenses incurred by the claimant:(i) medical attendance; ( ii ) loss of,,,

earning of profit up to the date of trial; ( iii ) other material loss. So far as non-pecuniary damages are concerned,",,,

they may include ( i ) damages for mental and physical shock, pain and suffering, already suffered or likely to be",,,

suffered in future; ( ii ) damages to compensate for the loss of amenities of life which may include a variety of,,,

matters i.e. on account of injury the claimant may not be able to walk, run or sit; ( iii ) damages for the loss of",,,

expectation of life i.e. on account of injury the normal longevity of the person concerned is shortened; ( iv),,,

inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.""Â",,,

The claimants-injured were reported to be skilled workers and earning Rs.12,000/- per month. Even from the",,,

perusal of the photocopy of the Insurance policy, it has been proved that the offending vehicle was insured with",,,

respondent No.3 at the time of accident and which has also been admitted by respondent No.3. Learned,,,

Tribunal by taking the income of the claimants at Rs.6000/- and by adopting the multiplier of 13 and 11 has,,,

awarded the compensation under the following heads:,,,

CIMA No. 63/2014- Mohd Hussain v. Oriental Insurance Co.Ltd. andothers,,,

1.Loss of Future Income : Rs. 80,000.00",,,

2.Loss of amenities : Rs. 10,000.00",,,

3.Loss of sufferings : Rs. 10,000.00",,,

Total :,,,

                       Rs.1,00,000.00",,,

CIMA No. 64/2014-Babu Ram V. Oriental Insurance Co.Ltd. andothers,,,

1.Loss of Future Income : Rs. 80,000.00",,,

2.Loss of amenities : Rs. 10,000.00",,,

3.Loss of sufferings : Rs. 10,000.00",,,

Total :,,,

                       Rs.1,00,000.00",,,

S.No.,Heading,Award of the Tribunal,Modified award

1.,Loss of Future Income,"Rs. 75,000/-","Rs. 75,000/-

2.,Loss of amenitiesÂ,"Rs. 10,000/-","Rs. 10,000/-

3,Loss of sufferings,"Rs. 10,000/-","Rs. 10,000/-

4.,For attending charges,Nil,Rs. 7500/-

5.,Travelling expenses,Nil,Rs. 7500/-

6.,Extra nutritionÂ,"Nil

Total","Rs. 10,000/-

Rs. 1,20,000/-

Appeals are, accordingly, allowed as above.Â",,,